Members of Congress Declare "Immunity" from Insider Trading Probe

The U.S. House Ways and Means Committee is refusing to cooperate with an insider trading investigation, saying its employees are “absolutely immune” from having to comply with subpoenas from the Securities and Exchange Commission (SEC).

U.S. District Court Judge Paul Gardephe ordered the committee last week to explain why it hadn’t responded to the SEC’s year-long request for documents, phone records and the testimony of staff director Brian Sutter, as part of a probe into whether he or other House members leaked private information about health care policy to insurance companies.

Rather than turning over the information, top House lawyer Kerry W. Kircher answered the order by requesting that the case be dismissed.

Kircher claimed that the request for documents violates the Speech or Debate Clause of the Constitution, which protects members of Congress from outside inquiry into “legislative acts” during their time in office.

“What the SEC has done is embark on a remarkable fishing expedition for congressional records -- core legislative records,” Kircher said in a court filing.

William Pittard, House deputy general counsel, also sent the SEC a letter claiming that the subpoenas are “vague, confusing, overbroad, unduly burdensome, unlikely to lead to the discovery of admissible evidence, and otherwise improper."

Pittard called the subpoenas “repugnant to public policy.”

However, history has shown both Kircher's and Pittard's claims to be questionable. The Supreme Court first found in 1966 that the Speech or Debate Clause can interfere with prosecutions of political corruption. A later case also ruled that while legislative acts are protected by the clause, political acts are still subject to investigation, which could include “errands” for constituents and assistance with government contracts.

Despite this, it is still unclear if Sutter committed a crime, because laws that prohibit insider trading among private companies are murkier in government, where the regulations are more flexible. A staff member is allowed to share an impending policy change with a lobbyist or policy expert before it is announced to the public, for example.

But Congress passed legislation like the Stop Trading on Congressional Knowledge (STOCK) Act to combat just that grey area — and prevent its members from taking advantage of it to illegally share insider information.

Adopted in April 2012, the law (PDF) ensures that Congress is not “exempt from the insider trading prohibitions arising under the securities law,” as part of its duty to maintain a “relationship of trust and confidence owed by each Member of Congress and each employee of Congress.”

The SEC began its investigation after a series of red flags in April 2013, a year after Congress adopted the STOCK Act. According to the filings, Sutter spoke with a lobbyist for law firm Greenberg Traurig just minutes before the lobbyist emailed a brokerage firm with information from “very credible sources” about a change in Medicare policy. The firm then sent out an alert about the upcoming change to clients, including large insurance companies like Humana, and share prices of several immediately jumped.

At the time, Sutter told federal investigators that he did not recall speaking with the lobbyist, but a few days later, a House lawyer said that “time for reflection” may have helped stir Sutter’s memory.

But the committee has since refused to answer the SEC’s requests for information. The closest it has come is asking the commission for a “substantial narrowing” of its demands and a “firm commitment that the Committee’s making available to [the] agency of certain documents would end the Committee’s and Mr. Sutter’s involvement in this matter.”